Cross-Examination: Chapter 9


The term “chapter method” is meant to reinforce the understanding that the cross-exam of any witness is not a flowing discussion with a single unifying purpose,  Instead, it is a series of small discussions (chapters) on individual topics of importance.

The chapter method seldom flows.  Instead it moves from topic to topic, not necessarily in chronological order.

Each chapter has a designed purpose or goal.  A chapter bundle is a grouping of related chapters that need to be used together in order to create a full picture of a topic.  A single topic may require several chapters.

The chapter method of cross-exam is built upon the realization that cross-exam is very much a positive endeavor, not simply a defensive reaction to direct exam.

The chapter method is fundamental to the process of witness control.

Modern cross-exam uses the chapter method to both attack the opponent’s theory of the case and support the advocate’s theory of the case.

There is a “proving” aspect to cross-exam.  To the extent that there is a gap in the story being told by the opponent, a skillful cross-exam may insert into the case facts, which fill that gap and thereby “prove” some further aspect of the story.

The chapter method allows the trial lawyer to divide even the most complex case into individual paters so that the jury can understand.

A quick method of recognizing potential chapters is to use a part process.

1. Divide case into its important scenarios.  A singe scenario may be composed of many events.
2. Divide the important scenarios into their component events.  A single good event may contain many good issues.
3. Analyze the component events for issues of assistance.  A single good issue may require more than once chapter.
The most important topics ordinarily deserve the most detailed presentations.
Possible chapters of cross-exam deserve preparation, even though they may dropped later.
Identifying the events of a case is not the equivalent of identifying the chapters of cross-exam.
Even bad events may contain good facts deserving of a chapter.
The size of the chapter is as big as the number of good facts available to accomplish a single goal.  Within an event there is often more than one point of importance,
Trial victories are virtually never the result of a single point beautifully made.  Most cases are won through an accumulation of facts that teach a coherent story that is supported by applicable law.
Central to the concept of the chapter method of the cross-exam is the recognition that each individual factual goal must be proven separately, even though it may have a very close relationship to similar goals.
Vivid chapters showing the strong factual support for a prior inconsistent statement cause jurors to accept the prior statement as more accurate.
Normally, a conclusion sought by the cross-examiner is capable of great dispute.  By cross-examining in the chapter method, the cross-examiner can present an accurate picture of the facts that compel the jury to agree with the cross-examiner’s desired conclusion without ever asking the witness to agree with that desired conclusion.
Chapters are about facts, not conclusions.  Conclusions may normally be disputed but facts that support the conclusion may not be disputed.
One of the advantages of the chapter method of cross-exam is that it allows the lawyer to skip over large amounts of fact that can be analyzed as undeserving of attention at trial.  Time not spent preparing for irrelevant issues is time saved.

4 Steps To Build a Chapter

1. Identify any one single factual goal to be achieved in the course of the cross-exam that is congruent with the theory of the case.
2. Review the cross-exam preparation materials for all the facts that lead toward acceptance of that single factual goal.
3. Draft a single chapter that covers those facts, leading to the factual goal as set out.
4. If, while in the course of drafting a chapter an additional worthwhile goal is identified, separate that goal and its supporting material into its own chapter.
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Filed under Cross-Examination: Science and Techniques by Pozner & Dodd

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